In re the Guardianship of: Daniel Joseph Haggenmiller.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-2081

In re the Guardianship of:
Daniel Joseph Haggenmiller.

Filed July 27, 2020
Reversed
Johnson, Judge

Sibley County District Court
File No. 72-PR-19-25

Jason R. Lee, Melchert Hubert Sjodin, PLLP, Hutchinson, Minnesota (for appellant Daniel
Haggenmiller)

David E. Schauer, Sibley County Attorney, Gaylord, Minnesota (for respondent Sibley
County)

Lutheran Social Services, Mankato, Minnesota (guardian)

Considered and decided by Johnson, Presiding Judge; Cochran, Judge; and John P.
Smith, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Sibley County petitioned the district court to appoint a guardian for Daniel Joseph
Haggenmiller. The district court granted the petition. On appeal, Haggenmiller argues that
the district court erred on the ground that the county did not present clear and convincing

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.

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evidence that he is an incapacitated person or that his needs cannot be met by less -
restrictive means. We agree and, therefore, reverse.
FACTS
Haggenmiller is a 67-year-old man who has lived at an assisted -living facility in
Gibbon since May 2018. In June 2019, the county petitioned for appointment of an
emergency guardian for Haggenmiller, which the district court granted. In August 2019,
the county petitioned for guardianship. The petition alleged that a physician at a Veterans
Administration (VA) hospital examined Haggenmiller in October 2017 and diagnosed him
with “maj or neurocognitive disorder (alcohol -related dementia).” The petition alleged,
based on the diagnosis, that Haggenmiller was unable to understand the consequences of
his actions and that he continued to make “decisions that negatively impact his health and
safety.” The petition also alleged that Haggenmiller could not manage his finances because
“he is easily manipulated and coerced into giving money or property away” and because
he “is being taken advantage of financially.” The petition further alleged that Haggenmiller
has poor self-care and has been living in unsafe conditions.
The district court held a hearing on the county’s petition in October 2019. The
county presented the testimony of three witnesses, beginning with a nurse practitioner who
had treated Haggenmiller. She supported guardianship for Haggenmiller because of his
medical history, statements about him made by other medical professionals, his short- and
long-term memory issues, and her concern about his ability “to make sound medi cal
decisions for himself.”

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The second witness was the co-owner of the assisted -living facility where
Haggenmiller lives, who is a nurse . She testified that she was concerned about
Haggenmiller’s safety, primarily because of instances in which Haggenmiller le ft the
facility to visit a local bar. She also was concerned because of reports that staff had found
half-burned cigarettes in Haggenmiller’s room and that he had previously gotten “very
agitated very easily at the other residents.” She testified that Haggenmiller can feed and
bathe himself but needs reminders, prompting, and help with setup and cleanup. She
testified that Haggenmiller can sometimes make and communicate re sponsible decisions
for himself. She believed that Haggenmiller’s short-term memory had worsened since he
arrived at her facility.
The third and final witness was a county employee who is Haggenmiller’s case
manager. She testified that Haggenmiller had a neuropsychological evaluation at the VA
in 2017 and was diagnosed with dementia. She has seen Haggenmiller “get belligerent”
and has received reports of incidents in which Haggenmiller showed behavioral issues.
She testified that Haggenmiller had previously lost housing placements, was “unable to
manage his finances,” and could not manage his medications. She “question[ed]
[Haggenmiller’s] ability to have good judgment about the decisions that he’s making”
because he does not “understand the consequences” of his actions. She agreed that
Haggenmiller had been “mostly sober” since moving to the assisted-living facility and that
she had never seen him drink alcohol.
After the parties presented closing arguments, the district court stated that the record
was “somewhat spotty” and not “fully developed” but that the county had nonetheles s

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proved that Haggenmiller is an incapacitated person. One week later, the district court
filed a written order in which it granted the county’s petition and ordered the existing
guardianship to remain in effect.
Haggenmiller filed a motion for reco nsideration. He argued that the evidence
concerning the 2017 diagnosis was unreliable and should not be considered based on a
post-hearing letter in which the county attorney stated that “the [VA] doctor indicated she
could not testify as to [Haggenmiller’s] current capacity” because “[s]he has not seen [him]
since that exam.” In November 2019, the district court denied Haggenmiller’s motion for
reconsideration. In its eight -page order and memora ndum, the district court further
explained its reasons for granting the county’s petition. Haggenmiller appeals.
D E C I S I O N
Haggenmiller argues that the district court erred by granting the county’s petition
for guardianship. He makes numerous argum ents, which focus on two primary issues:
whether he is incapacitated and whether his needs cannot be met by less-restrictive means.
The proof necessary for a guardianship is specified by statute:
The court may appoint a limited or unlimited guardian
for a respondent only if it finds by clear and convincing
evidence that:

(1) the respondent is an incapacitated person; and

(2) the respondent’s identified needs cannot be met
by less restrictive means . . . .

Minn. Stat. § 524.5-310(a) (2018).

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This court reviews a district court’s order appointing a guardian to determine
“whether the district court’s findings are clearly erroneous, giving due regard to the district
court’s determinations regarding witness credibility.” In re Guardianship of Wells ,
733 N.W.2d 506, 510 (Minn. App. 2007), review denied (Minn. Sept. 18, 2007). A finding
is clearly erroneous if it is not supported by the evidence. See In re Guardianship of Doyle,
778 N.W.2d 342, 352 (Minn. App. 2010) (citing Fletcher v. St. Paul Pioneer Press ,
589 N.W.2d 96, 101 (Minn. 1999)). If the petitioner has satisfied the clear-and-convincing
evidentiary standard, a district court has discretion to appoint a guardian, and this court
applies an abuse -of-discretion standard of review to that discretionary decis ion. In re
Guardianship of Autio, 747 N.W.2d 600, 603 (Minn. App. 2008).
A. Incapacitated Person
We begin with the first requirement for the appointment of a guardian, that the
respondent is an incapacitated person. See Minn. Stat. § 524.5-310(a)(1). Th e term
“incapacitated person” is defined by statute to have a two-part meaning:
an individual [1] who . . . is impaired to the extent of lacking
sufficient understanding or capacity to make or communicate
responsible personal decisions, and [2] who has dem onstrated
deficits in behavior which evidence an inability to meet
personal needs for medical care, nutrition, clothing, shelter, or
safety, even with appropriate technological assistance.

Minn. Stat. § 524.5-102, subd. 6 (2018) (alterations added). We address each part of this
definition, beginning with the second part.

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1. Behavioral Deficits
Under a heading corresponding with the second part of the definition of
“incapacitated person,” the district court found that Haggenmiller cannot meet his personal
needs on his own and “is in need of 24-hour supervision.” The district court reasoned that
Haggenmiller has “problems [that] are due to self -neglect,” “gets agitated very easily ,”
smokes indoors, needs help and prompting to bathe himself, and cann ot manage his
medication due to memory deficiencies. The district court additionally noted that
Haggenmiller has a history of drinking, mismanaging his finances, and losing housing
placements.
Haggenmiller contends that the district court’s finding is the product of an
“underdeveloped record” because the county presented only vague and general testimony
about his alleged deficiencies. He argues that the evidence relied upon by the district court
is more relevant “to his past, not his current situation.”
We agree with Haggenmiller that the evidence is thin with respect to the second
prong of the definition of incapacitated person. The count y’s witnesses testified only
generally about Haggenmiller’s ability to meet his personal needs. The county presented
no specifics of Haggenmiller’s previous financial and housing issues or how those issues
relate to his future decision-making. Haggenmiller’s inappropriate or disruptive behavior
is not unique to persons who are incapacitated and, thus, is not necessarily a “demonstrated
deficit[] in behavior which evidence[s] an inability to meet personal needs ,” absent
additional evidence or explanation. See Minn. Stat. § 524.5-102, subd. 6. The county’s
witnesses did not explain how or why Haggenmiller’s inability to manage his medications

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would cause adverse medical consequences, or even what those consequences would be ,
in light of the fact that he lives in an assisted -living facility . And with respect to
Haggenmiller’s need for help with bathing or eating, the district court noted, “It is unclear
if [Haggenmiller] is incapable or unwilling to do these things himself.” The lack of clarity
in that evidence tends to show that it is not “clear and convincing.”
Thus, the county’s evidence cannot satisfy the county’s bu rden to prove, by clear
and convincing evidence, the second prong of the definition of “incapacitated person,” that
Haggenmiller “has demonstrated deficits in behavior which evidence an inability to meet
personal needs for medical care, nutrition, clothing, shelter, or safety, even with appropriate
technological assistance.” See Minn. Stat. § 524.5-102, subd. 6.
2. Impairment
Under a heading corresponding with the first part of the definition of “incapacitated
person,” the district court found that Haggenmiller “lacks sufficient understanding or
capacity to make or communicate responsible personal decisions” because of “his
behaviors at his current facility as well as his behavior prior to being placed in his current
memory care facility.” The district court focused on Haggenmiller’s uncooperative
behavior, stating that Haggenmiller “gets agitated very easily, yelling and swearing, at the
other residents and staff”; has put himself and other residents in the facility at risk by
smoking indoors; and has twice patronized bars after deciding to “elope from the facility.”
The district court further found that Haggenmiller “does not have the ability to use good
judgment” because he continues to use alcohol despite his “main diagn osis stem[ming]

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from his use of alcohol,” as evidenced by the “two different times that [he] had to be taken
out of bars.”
Haggenmiller contends that the district court erred in multiple ways with respect to
this finding. Some of his contentions go to the admissibility of evidence or the drawing of
an adverse inference from the absence of his own testimony. But his most substantial
contentions go to the sufficiency of the evidence.
We begin by noting that the district court’s findings with respect to the first part of
the definition of “incapacitated person” are largely repetitive of its findings with respect to
the second part of the definition. Those findings do not bear directly on whether
Haggenmiller is “impaired to the extent of lacking sufficient u nderstanding or capacity to
make or communicate responsible personal decisions.” See Minn. Stat. § 524.5-102,
subd. 6. The findings, by themselves, arguably are insufficient to s atisfy the statutory
criteria.
The district court’s lack of findings as to w hether Haggenmiller is impaired reflect
the evidence in the record. Haggenmiller contends that the evidence is insufficient because
there is no testimony or written report of a physician. He does not contend that such
evidence is required as a matter of law, but he persuasively contends, by citing to numerous
non-precedential opinions, that such evidence typically is present in cases of this type and
is an essential feature of the clear and convincing evidence that is necessary for a
guardianship. Indeed, it appears that both the bench and bar have recognized that the best
practice is to introduce evidence of a physician’s evaluation of the person who allegedly is
incapacitated. See Minn. Conf. of Chief Judges, Conservatorship and Guardianship in

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Minnesota 13 (Aug. 2016); Robert A. McLeod & Ivory S. Umanah, How to Start Your
First Guardianship!: The Forms You Need, How to Fill Them Out and How to File Them
at 3, in 2015 Probate & Trust Law Section Conference (Minn. CLE 2015). The absence
of such evidence in this case is of special concern because the record indicates that the
physician who examined Haggenmiller in 2017 refused to testify because she had not
recently evaluated him. As a result, the evidentiary record contained only second -hand
descriptions of a stale diagnosis by a physician who was unwilling to testify about
Haggenmiller’s condition.
We note that the county’s evidence focused on Haggenmiller’s ability to make
decisions concerning his medical care. When the district court asked the nurse-practitioner
for specific reasons why Haggenmiller needed help making medical decisions, she
responded by saying that “as we get older, we have decline, we have more disease
processes.” The case manager testified in general terms that Haggenmiller cannot “manage
his medications because he doesn’t have the memory to do so, so he doesn’t know what he
takes or why he takes it.” But the county’s witnesses did not explain the adverse medical
consequences that have ar isen or might arise while Haggenmiller is living in an assisted -
living facility, where staff presumably can and do prompt him to take his medications as
necessary. The county’s evidence does not clearly and convincingly establish that
Haggenmiller’s condition hinders his ability to make the decisions that are necessary for
his medical care.
In addition, Haggenmiller persuasively contends that other evidence presented by
the county is vague, general, and lacking in specifics. The county’s witnesses testified only

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in general and conclusory terms about Haggenmiller’s ability to make decisions. The case
manager broadly testified that Haggenmiller “is unable to manage his finances” and that
the county is “working to pay down his debt.” The county provided no specifics as to how
the debt was incurred, the nature of the poor decisions that led to the debt, or the extent of
the consequences of those decisions.
Thus, the county’s evidence in this case cannot satisfy its burden to prove, by clear
and convincing evidence, the first prong of the definition of “incapacitated person,” that
Haggenmiller “is impaired to the extent of lacking sufficient understanding or capacity to
make or communicate responsible personal decisions.” See Minn. Stat. § 524.5-102,
subd. 6.
Therefore, we conclude that the district court clearly erred by finding that
Haggenmiller is an incapacitated person. This conclusion is a sufficient basis for reversal
of the district court’s decision.
B. Less-Restrictive Means
We continue by analyzing the second requirement for the appointment of a guardian,
that “the respondent’s identified needs cannot be met by less restrictive means.” Minn.
Stat. § 524.5-310(a)(2). Less-restrictive means are those that allow a ward to keep as much
autonomy as possible while providing the necessary protection. See In re Guardianship of
Kowalski, 382 N.W.2d 861, 866 (Minn. App. 1986), review denied (Minn. Apr. 18, 1986).
The district court found that Haggenmiller’s needs cannot be met by less-restrictive
means because he “is not capable of entering into a health care directive or advance
psychiatric directive .” This finding appears to be based on the nurse -practitioner’s

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testimony that “one of [her] biggest concerns” pertained to “medical deci sion-making” if
“something were to happen” to Haggenmiller. The county attorney argued that a health -
care directive was not an appropriate alternative because none of Haggenmiller’s family
members are willing to execute such a directive. We note that there is no requirement that
a person execute a health-care directive. A person “with the capacity to do so may execute
a health care directive.” Minn. Stat. § 145C.02 (2018) (emphasis added). That
Haggenmiller has not executed a health-care directive may reflect a deliberate decision to
not do so. Thus, we agree with the district court that a health -care directive is not an
appropriate less-restrictive alternative to a guardianship in this case.
The district court also found that Haggenmiller’s existing behavioral-care plan and
the assistance of the county’s caseworkers “are not enough.” Haggenmiller argues that
less-restrictive alternatives were available in the form of either his staying at the assisted -
living facility or the appointment of a limited guardian. The county has not explained how
the appointment of a guardian will improve Haggenmiller’s day-to-day behavior or that a
guardianship is the only way to do so.
Thus, the district court erred by finding that Haggenmiller’s needs cannot be met by
less-restrictive means.

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In sum, we agree with the district court that the record is “spotty” and not “fully
developed.” For that and other reasons, we conclude that the evidence is insufficient to
prove that Haggenmiller is an incapacitated person or that his needs cannot be met by less-
restrictive means. Therefore, the district court erred by granting the county’s petition and
appointing a guardian.
Reversed.